What is Provisional Patent?

Provisional Patent

A provisional patent application will never mature into an issued patent, but in the right circumstances (and when done correctly), it can be a very useful tool for inventors. This is especially true now that the United States is a first-to-file country, which means that inventors must file first before disclosing anything about their invention, offering it for sale, or publicly using the invention.

A provisional patent application is a U.S. national patent application filed with the USPTO. It enables filing without the need for a formal patent claim, oath, or declaration. The emphasis is on fully describing the invention, and many formalistic requirements of a non-provisional patent application are unnecessary to meet. A provisional patent application also allows for an early effective filing date to be established in a later filed non-provisional patent application. It also permits the use of the phrase "Patent Pending" in connection with the description of the invention.

A provisional patent application has a pendency period of 12 months from the date it is filed. Only in exceptional circumstances can the 12-month pendency period be extended. As a result, within 12 months, an applicant MUST file a non-provisional patent application claiming the priority of a provisional patent application.

If you miss the 12 month deadline, you may get an extra 2 months to claim priority to the provisional in exceptional cases, but that comes with a hefty $1,050 fee (for small entities) and $525 (for micro entities), and that extra 2 months is only applicable if there is a mistake (i.e., clerical error such as mis-calendaring) that caused the failure to file within 12 months. As a result, never believe that you have more than 12 months to file a non-provisional patent application claiming priority to a previously filed provisional. The extra two months is expensive and difficult to prove legal entitlement to.